Home > divorce modification, family law general > Alimony…Be Afraid, Be Very Afraid

Alimony…Be Afraid, Be Very Afraid

I did some research for an attorney in Ogden recently on the caselaw regarding alimony modification.  From what I found, this is a very scary thing.  Not only does the older case law render some odd interpretations of what the statute means, but just last year, in 2014, the court rocked the alimony modification world.

As far as the statute is concerned, these are the standards for modification:   “alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time.” (emphasis added) UCA 30-3-5(8)(j).  While the courts haven’t said what constitutes “extenuating circumstances,” it’s a pretty wide-open, discretionary call.  And since the standard on appeal is “abuse of discretion,” meaning, the judge’s decision went against the great weight of the evidence, it’s pretty hard to reverse a district court ruling on appeal based on this standard.  It’s not exactly an Anything Goes situation, but pretty damn close.  Scary.

Also from the statute regarding alimony modifications: modifications must be based on a “substantial change in circumstances not foreseeable at the time of the divorce.” UCA 30-3-5(8)(i)(i).  So what exactly does that mean as far as the court is concerned?  The court has defined this in  Bolliger v. Bolliger, 997 P.2d 903 (Utah Ct App 2000).

“[W]here a future change in circumstances is contemplated by the trial court in the divorce decree, the fulfillment of that future change will not constitute a material change of circumstances sufficient to modify the award.” Johnson v. Johnson, 855 P.2d 250 (Utah 1993).

“The court has articulated what is meant by ‘contemplated by the divorce decree’:

The fact that the parties may have anticipated [a substantial material change in circumstances] in their own minds or in their discussions does not mean that the decree itself contemplates the change. In order for a material change in circumstances to be contemplated in a divorce decree there must be evidence, preferably in the form of a provision within the decree itself, that the trial court anticipated the specific change. (emphasis added) Durfee v. Durfee, 796 P.2d 713 (Utah 1990)

Accordingly, if both the divorce decree and the record are bereft of any reference to the changed circumstance at issue in the petition to modify, then the subsequent changed circumstance was not contemplated in the original divorce decree. See id. (emphasis added).”

(This principle was also referred to in Busche v. Busche, 272 P.3d 748 (Ut Ct App 2012).)

So what about your provisions that say there won’t be alimony, or it will only be $XX for XX years?  Yeah, not so much.  More Helpful notes from Utah case law:Judicial restraint

“In a divorce action the trial court should make such provision for alimony as the present circumstances of the parties warrant, and any stipulation of the parties in respect thereto serves only as a recommendation to the court. If the court adopts the suggestions of the parties it does not thereby lose the right to make such modification or change thereafter as may be requested by either party based on some change or circumstances warranting such modification.” Id. at 224 (quoting Barraclough v. Barraclough, 100 Utah 196, 111 P.2d 792, 793 (1941) (per curiam)); see also Huck v. Huck, 734 P.2d 417, 419 (Utah 1986). That is, “the law was intended to give the courts power to disregard the stipulations or agreement of the parties in the first instance and enter judgment for such alimony or child support as appears reasonable, and to thereafter modify such judgments when change of circumstances justifies it, regardless of attempts of the parties to control the matter by contract.” Diener v. Diener, 2004 UT App 314,¶5, 98 P.3d 1178 (emphasis added) (quoting Naylor v. Naylor, 700 P.2d 707, 709-10 (Utah 1985)).

Getting out of alimony

So, to sum up:

1)  The parties agreeing to never modifying alimony is not a provision that prevents modification by the court;

2)  “Substantial and material change not contemplated by the decree” does not necessarily mean that the circumstances did not exist at the time of the decree, but rather that the decree never addressed those circumstances specifically;

3) Lastly–the statute specifically states that “alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time.” (emphasis added) UCA 30-3-5(8)(j).

So THAT'S how you squeeze blood from a turnip... with PhotoShop

So THAT’S how you squeeze blood from a turnip… with PhotoShop

And a final note from the 2014 appellate court session:  Hansen v. Hansen 2014 UT App 96, or “equalization of poverty” (i.e., “spreading the pain.”) In that case alimony was awarded in an amount in excess of what the court found the payor had the ability to pay.  Basically, husband was barely covering his bills, but wife was not, so they just made it so NEITHER could pay their living expenses.  The court justified this action by stating that it simply equalized the parties’ monthly financial shortfalls.  Nice.

So there you have it.  In all its foulness.  How the court can ruin your life forever through alimony.  Let’s hope someday that more reasonable minds will find their way to the appellate court.  Or the world ends.  Whichever happens first.Malcolm X crushing

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